Lilian Edwards (well, her Pangloss persona, anyway) offers another characteristically trenchant analysis here of the shocking mess that is the Digital Economy Bill. The DEBill* appears to be yet another in the growing list of legislative measures in which the Bill is drafted so as to confer disproportionate powers, while we are assured by the sponsoring Minister‡ that they will either never be used, or be used only for good.
Unfortunately both principle and practice tell us that that is simply not believable. Principle, because if the intent of the law is not clear in the legislation itself (but must be set out in some other entirely non-statutory document, such as an “open letter” from the Minister) the legislation is clearly deficient; and practice, because we have ample evidence that such assurances are seldom worth the open letter they are printed on. Once the Bill is enacted, the powers it confers will be used, whether or not their use is appropriate, proportionate, or even – in some cases – unlawful under other supervening provisions such as the Human Rights Act. It’s as simple as that.
Think, for instance, of the use of powers granted under the Terrorism Act to protect Jack Straw from being heckled by an 82-year-old pacifist…
Or the many documented instances of the inappropriate use of RIPA (Regulation of Investigative Powers Act) to gather evidence of, say, fly-tipping or dogs pooing on the pavement…
Or the officious use of SOCPA (Serious Organised Crime [sic] and Police Act)to arrest a lone man for reading out a list of Iraq war fatalities in front of the Cenotaph without police permission…
Or the pre-emptive (and presumptive) detention of people based on what they might do, not on what they are doing or have done…
… and so on, and on, and on.
The DEBill is wrong on almost every level.
It contains measures which actively inhibit or damage the prospects of a viable digital economy, while failing to legislate in areas which might contribute to one: for example, it will actively discourage the provision of internet access in places like libraries, schools and universities, but it has absolutely nothing to say on the topic of, say, a smart grid for consumer energy usage.
It enshrines measures which undermine or over-ride due process. For instance, it will allow commercial companies to force the disconnection of households, businesses and other organisations without going to court, and regardless of who (if anyone) within those households, businesses or organisations has or has not committed what the DEBill defines as an offence. In my case, for example, that could mean that I was cut off from my ability to earn a living because of untested and unproven allegations – against someone else – by a third party.
It actively discriminates against, for instance, individuals who upload photographs to sharing sites such as Flickr – making it possible for third parties to exploit such materials on payment of a fee to the UK government. Not only is this manifestly unfair, it reflects a fundamental misunderstanding of how the internet works… let me take a moment to explain why I say that.
I want to upload photos to Flickr so that other can see them, but I don’t necessarily want to publish my identity along with the photos… so I have a pseudonymous account. Flickr has my true details, of course, but there is no reason for those to appear alongside my photos. If I use Flickr’s Creative Commons options to specify, for instance, that my photos may not be re-used in any way, that ought to be as far as I need to go. There is no need for a third party to establish who I am, because I have made clear my preference for my photos not to be re-used.
However, the DEBill, as drafted, would entitle such a third party to claim that my photos were orphan works (because the “copyright holder” could not be identified). That third party could then apply for permission to exploit my photographs – not to me, but to the government. The fee for that permission would go, not to me, but to the government. Anyone see an issue with this? Thought not.
The DEBill is wrong at the meta-level, too. Not only does the Bill itself enshrine evasions of due process (as described above), it is also about to be pushed through Parliament without debate, as part of the inappropriately-named “wash-up” process in the closing days of the legislative session.
On April 6th, the Bill will be given its second reading and then become a bargaining chip in an unaccountable and undemocratic haggling session amongst MPs whose chances of forming part of the next legislature are entirely uncertain.
I urge you to let your MP know that you object to the Bill and its passage through Parliament.
* And as I have noted on Twitter, that name must have our Francophone colleagues rolling in the aisles… “débile” being French slang for “nuts/crazy/daft”…
‡In this case, reassuringly, that is Lord Mandelson, Baron of Foy in the County of Herefordshire and of Hartlepool in the County of Durham; First Secretary of State; Secretary of State for Business, Innovation and Skills; President of the Board of Trade; Lord President of the Council.